Republican Wall On “No Hearings, No Votes” For SCOTUS Nominee Appears To Be Cracking

The unity of the Republican Senate on the idea of no hearings or votes, if it ever really existed, appears to be cracking.

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Two Republican Senators, including one up for re-election this year, seem to be splitting from the Republican line on the question of whether or not there should be a vote on whomever the President nominates to fill the Supreme Court seat made vacant by the death of Justice Antonin Scalia.

First up, North Carolina Senator Thom Tillis, who was elected in the Republican Senate wave in 2014, warned that the GOP risks being seen a obstructionist if it takes a hardline no-vote position regardless of who the President nominates:

Freshman GOP Sen. Thom Tillis warned Tuesday that his party risks being seen as “obstructionist” in a fight over Supreme Court nominations with President Obama.

The remarks from the North Carolina Republican are the first crack in GOP unity since Saturday’s stunning news of Supreme Court Justice Antonin Scalia’s death, whose passing has put the tilt of the court in question. Scalia’s successor seems likely to determine whether its majority will lean liberal or conservative.

Republicans are under enormous pressure to block any nominee from Obama, and Senate Majority Leader Mitch McConnell (R-Ky.) quickly put out a statement after Scalia’s death stating that the vacancy should not be filled until a new president takes office.

Yet the GOP also faces enormous risks with its strategy if it turns off independent voters already irritated by Washington’s dysfunction.

Tillis’s comments Tuesday on “The Tyler Cralle Show” seemed to acknowledge this dilemma.

“I think we fall into the trap, if we just simply say sight unseen — we fall into the trap of being obstructionist,” he said in comments first noted by Think Progress, a left-leaning website.

Tillis added that he would not support a liberal nominee, and argued that Republicans should use “every device available” to block someone who is “in the mold of President Obama’s vision for America.”

Think Progress has further details on Tillis’s remarks, which seem to make clear that while Tillis seems inclined to think the GOP should allow a vote to take place, it’s unlikely that he’d support a nominee that President Obama would choose:

Tillis, who was elected to the Senate in 2014, did not sound like a man ready to vote a potential Obama nominee, even if he believes the person deserves a hearing. “If he puts forth someone that we think is in the mold of President Obama’s vision for America, then we’ll use every device available to block that nomination,” Tillis said. He advised the president to nominate someone who has “an almost identical resume and capabilities of Justice Scalia.”

Notwithstanding this part of Tillis’s comments, it’s noteworthy and potentially important that Tillis said what he did largely because he sits on the Senate Judiciary Committee. As I noted yesterday, the Chairman of that Committee, Iowa Senator Chuck Grassley, seemed to pull back from his initial comments in the wake of Scalia’s death himself when he said on the radio in Iowa yesterday that he was not ruling out the possibility of holding hearings on whatever nominee the President sends to the Senate. This is a seeming change from the position that Senate Republican leadership seemed to take in the immediate wake of the news of Scalia’s death that the Senate would not act on a nomination sent by the President during his lame duck year in office. This is also the position that has been adopted by hard-line Republicans and conservatives outside Congress, who are likely to be angered by these signs that the Republican Senate Caucus may not be as fully invested in the “No Hearings, No Votes” idea as may have seemed on Saturday evening.

In addition to Tills, Wisconsin Senator Ron Johnson is also saying that he would not oppose a Senate vote on a nominee sent by the President to fill Scalia’s seat:

Sen. Ron Johnson (R-WI), who is running for re-election this year against former Sen. Russ Feingold (D-WI), on Tuesday said that he is not opposed to the Senate taking a vote on President Obama’s nominee to replace Supreme Court Justice Antonin Scalia, who passed away over the weekend.

In a Sunday statement, Johnson echoed the calls of his fellow Republican senators, who have said that the next president should choose Scalia’s replacement.

“I strongly agree that the American people should decide the future direction of the Supreme Court by their votes for president and the majority party in the U.S. Senate,” Johnson said in a statement. “America needs Supreme Court justices who share Justice Scalia’s commitment to applying the Constitution as written and to the freedom it secures.”

Though he said he does not believe Obama should nominate the next justice, in two separate interviews on Tuesday, Johnson said that he is not against the Senate allowing the confirmation process to take place.

“I’ve never said that I wouldn’t vote, or that we shouldn’t vote,” Johnson said in an interview on the “The Jerry Bader Show” highlighted by the Huffington Post. “I have no idea how the process plays out, I’m not in control of it. I’m not the majority leader, I’m not chairman of the Judiciary. By the time I would actually take the vote, if it comes to that, I’ll take a vote.”

During a Tuesday interview with Johnson reported by ThinkProgress, radio host John Howell said, “I think that you should go through the process. If you don’t, I think the party winds up looking like obstructionists.”

“Well, John, we might,” Johnson responded. “What I’ve heard Leader McConnell say — and maybe he said something else — is let’s, in the end, let the American people decide. So, if president Obama appoints a Justice Scalia clone, my guess is we confirm a Justice Scalia clone. That’s not gonna happen. We already know the type of justices he put on the court. And so I doubt a liberal activist justice — judge would be confirmed by the Senate.”

“And if we choose to not to confirm, either by not acting or by voting that choice down, either way it’s an action. It’s not giving consent to his nominee. And again, the advice is, let the American people decide the direction of this country,” Johnson continued. “I think it’s a very reasonable position.”

Johnson’s seeming backtracking is significant because he is one of the Republicans up for re-election that is deemed to be most vulnerable due to the fact that he is running in a state that President Obama won in both 2008 and 2012, and which Democrats have won in every Presidential election since 1988. Additionally, Johnson is running against popular former Senator Russ Feingold, who has been holding massive leads in the polls that have been taken in the state, although its worth noting that it has been three months since that Senate race was last polled. Nonetheless, the fact that Johnson is apparently approaching his re-election bid as the underdog is in no doubt motivating him to be rather careful in how he responds on this issue since its likely that an obstructionist anti-Obama position such as that being urged by hard-line conservatives.

In any case, comments such as these from Grassley, Tillis, and Johnson suggest that the Senate GOP may still be trying to feel out the politics that will play a large role in the nomination and attempted confirmation of any Supreme Court nominee that President Obama selects. Regardless of who that nominee is, and even if it ends up being someone who had previously been selected for a position on one of the Circuit Courts of Appeal, it’s unlikely that the nominee will be confirmed for several reasons. First of all, even the Senators who have suggested that they support going forward with hearings and possibly even a vote on the floor have said that they oppose the idea of confirming a nomination made in the final year of a lame duck Presidency. Second, the fact that this is a vote to fill the seat held by Justice Scalia, and that doing so has the potential to significantly alter the ideological balance of the Court for as much as a generation to some, means that conservatives are likely to fight hard to keep the seat open on the chance that a Republican will win the White House in November and thus be able to fill the seat with someone more inclined to approach the law in the same way that Justice Scalia did. Finally, while the ideological pressure currently calling for no hearings or votes may abate somewhat, many Republicans would likely create long standing ill will if an Obama nominee were somehow confirmed by a Republican controlled Senate. For that reason, it still seems likely that things will unfold largely as I anticipated in my post earlier this week when I posited that the nomination will likely die when it fails to get the sixty votes needed to invoke cloture. That will be a vote, but its one that Democrats are unlikely to win.

Update: Senator Dean Heller, a Republican from Nevada, has joined Grassley, Johnson, and Tillis:

Nevada GOP Sen. Dean Heller is breaking sharply with his party’s strategy on a Supreme Court nominee, calling on President Barack Obama to put forward a consensus candidate to replace Antonin Scalia while insisting that Nevadans should have a voice in the process.

The statement from the purple-state senator is the most direct rebuttal to Senate Majority Leader Mitch McConnell’s plans to completely block a Supreme Court nominee. Though Heller says that a nominee is unlikely to be confirmed this year, he encouraged Obama to select a nonideological candidate. new nominee are slim, but Nevadans should have a voice in the process. That’s why I encourage the President to use this opportunity to put the will of the people ahead of advancing a liberal agenda on the nation’s highest court,” Heller said on Wednesday in a statement to POLITICO.

One suspects these four Senators won’t be alone for long.

FILED UNDER: Campaign 2016, Congress, Law and the Courts, US Politics, , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. al-Ameda says:

    Finally, while the ideological pressure currently calling for no hearings or votes may abate somewhat, many Republicans would likely create long standing ill will if an Obama nominee were somehow confirmed by a Republican controlled Senate.

    In the current political environment you have to ask, exactly what action by Republicans to approve anything Obama wanted would NOT cause long-standing rancor and ill will?

    It seems to me that we’re already there.

    I too feel that there will by at least 2 nominations and 2 votes of non-approval by the Republican Senate. In my opinion too many Republican votes have to be secured to make an approval possible. Regardless, Obama needs to press forward.

  2. gVOR08 says:

    Only took five days for some of them to start realizing McConnell had staked out an untenable position. Maybe our Republicans are learning.

  3. C. Clavin says:

    He advised the president to nominate someone who has “an almost identical resume and capabilities of Justice Scalia.”

    Sure I’ll vote on a nomination if you give me who I want. How moderate of him. Maybe he could expedite the process by giving us a name?
    Some of the stuff out of Scalia made me think he was going senile. So I’m not sure you want those capabilities.

  4. C. Clavin says:

    He advised the president to nominate someone who has “an almost identical resume and capabilities of Justice Scalia.”

    Scalia was a wholly owned subsidiary of the Koch Brothers, was on a paid junket by someone he bailed out in a SCOTUS case when he died, and as we all know he palled around with noted war criminal Dick Cheney while a case involving Cheney was before the court.
    So in addition to being an old white senile guy, he was prone to questionable ethics and corruption.
    Perfect Republican.

  5. humanoid.panda says:

    @C. Clavin: You do realize that when Scalia was appointed to the Court, the Koch Brothers were still trying to shape the Libertarian party into an electoral force, right? This liberal conviction that the only reason anyone would disagree with us is because he was either bought or brainwashed is dangerous folly.

  6. James Pearce says:

    Grassley, Tillis, and Johnson may be walking back the “no hearings” position, but they all seem open to rejecting Obama’s nominee sight unseen. They want to be obstructionist. They just think we’re too stupid to notice.

  7. MikeSJ says:

    @C. Clavin:

    Perhaps Obama can show, ah, less nasty divisiveness, and nominate a true bi-partisan candidate.

    This would be the Koch Brothers of course. Now there are two of them, true that but corporations are people I’m told so how about Koch Inc.? Each brother can take turns representing as needed.

    Problem solved.

  8. C. Clavin says:

    @humanoid.panda:
    The Kochs were among the main beneficiaries of the Citizens United.
    When the Kochs send out invitations for their political retreat in Palm Springs every year they highlight past appearances at the gathering of “notable leaders” like Justice Scalia.
    Unfortunately there isn’t a strong code of ethics for SCOTUS Justices; Canon 4C of the Code of Conduct for U.S. Judges doesn’t apply to the Supremes. If it did they would be prohibited from such activities. As it is they are not, but they should be. In addition Thomas’s wife is quite literally on the Koch Brothers payroll. If a Justice that leaned Democratic behaved this way Republicans would scream bloody murder.

  9. Hal_10000 says:

    @C. Clavin:

    So which Koch marching order was Scalia obeying when he defended flag burning? Or overturned mandatory minimums? Or forbad using heat cameras to find marijuana grows or GPS trackers without a warrant? Or told the Bush Admin they should try Hamdi in a civilian court? Why did he disobey them in voting against gay marriage, which they supported?

    “Koch Brothers” is just a dog whistle. It’s like reading something from a conservative that refers to Obama by his middle name. As soon as I see it, I know I can ignore anything that follows

    Back to the main issue …

    I suspect the Republicans are now getting data that tells them that refusing to consider an Obama nominee would be political suicide. Voting down a nominee won’t hurt them much.Over the last 40 years, we’ve learned that you can make just about anyone look like a maniac in a confirmation hearing.

  10. gVOR08 says:

    @Hal_10000: The Koch Bros have chosen to make themselves the public face of excessive money in politics. So be it. Directing what, 800 million plus, in political spending is a pretty big dog whistle. You want to ignore it because the money’s on your side, OK, but I don’t see why you expect the rest of us to ignore the 800 lb gorilla.

  11. LC says:

    This is a seeming change from the position that Senate Republican leadership seemed to take in the immediate wake of the news of Scalia’s death that the Senate would not act on a nomination sent by the President during his lame duck year in office.

    the “lame duck period” does not start until after the November election. But keep giving rhetorical cover to Republicans denying the legitimacy of the President, Doug — we all know you’re soooooo independent.

  12. Andre Kenji says:

    @C. Clavin:

    If a Justice that leaned Democratic behaved this way Republicans would scream bloody murder.

    They did with both Abe Fortas and William Douglas.

  13. humanoid.panda says:

    @gVOR08: Right. The Koch Brothers are a huge deal, and should be talked about at length. Still, to pretend that anything and everything a republican does is because the Koches are pulling his strings is a ridicilous overstatement.

  14. C. Clavin says:

    @Hal_10000:
    Eight. Hundred. Million.
    And that’s just what we know about.

  15. Barry says:

    @Andre Kenji: “They did with both Abe Fortas and William Douglas.”

    Please have somebody who knows both the English language and history explain things to you.